Sweat v. Miller Brewing Co.

Decision Date01 July 1983
Docket NumberNo. 82-8175,82-8175
Citation708 F.2d 655
Parties32 Fair Empl.Prac.Cas. 384, 32 Empl. Prac. Dec. P 33,722 Donald A. SWEAT, Executor of the Will of Barbara C. Carlson, Plaintiff-Appellant, v. MILLER BREWING COMPANY, A Wisconsin Corp., Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Stagg, Wildau, Simpson, Hoy & Oakley, Mary Ann B. Oakley, Atlanta, Ga., for plaintiff-appellant.

Donald B. Harden, Weyman T. Johnson, Jr., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and CLARK, Circuit Judges, and GIBSON *, Senior Circuit Judge.

RONEY, Circuit Judge:

Barbara C. Carlson alleges her discharge from Miller Brewing Company was the result of sex and age discrimination in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. 42 U.S.C.A. Secs. 2000e et seq., 29 U.S.C.A. Secs. 621 et seq. The district court denied Carlson's motion to compel discovery of statistical information and granted summary judgment for the employer. Because a genuine issue of fact was presented concerning the reason for Carlson's discharge, we reverse the grant of summary judgment and remand the case for a trial. We remand the motion to compel discovery for reconsideration by the trial judge.

Donald A. Sweat, the executor of Carlson's will, has been substituted as a party in this appeal because of Carlson's death while this appeal was pending. The motion for substitution was unopposed. Because the parties have not addressed the matter, we assume without deciding that this action survives the death of the plaintiff. See Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26, 28 (N.D.Ga.1980).

In reviewing the grant of summary judgment, the question is whether there is any genuine issue of material fact. Fed.R.Civ.P. 56(c). We must view the evidence in the light most favorable to Carlson, the party opposing the motion for summary judgment. Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026 (5th Cir. Unit B 1982).

Barbara Carlson, a woman over 40 who was qualified for her position as an industrial relations representative at the Miller Brewing Company, was discharged. Two males under 40 were added to the staff as industrial relations representatives. As defendant recognizes, this establishes a prima facie case of sex and age discrimination. Miller Brewing Company articulated a legitimate nondiscriminatory reason for Carlson's discharge, claiming it was because she stated she had taped the exit interview of another Miller employee. According to the company, this incident undermined her credibility and that of the department.

Carlson claims that the reason asserted for her dismissal was merely a pretext for impermissible age and sex discrimination. An employee may demonstrate pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). Carlson presented evidence that her supervisor, Richard Wilson, was motivated by discriminatory intent, and evidence that the stated reason for her dismissal was not credible.

Carlson presented affidavit and deposition testimony concerning Wilson's discriminatory intent. (1) Wilson had told Carlson she did not fit his "management style" and that women have a difficult time in labor relations. (2) When Carlson observed that she had not seen any women as industrial relations managers, Mr. Wilson replied, "We take care of that during the appraisal." (3) When Carlson asked Wilson if some of her heavy workload could be shared with others, he responded, "that is a typical female remark." (4) He assigned the brewery's uniform program to her because she was a woman. (5) As time for production at the brewery approached and more employees were hired, Mr. Wilson specifically informed Ms. Carlson that he was going to hire two male industrial relations representatives. Two males under age 40 were soon hired. (6) Wilson, under age 40, referred to some of Carlson's work experience as "ancient history" and told her that working is difficult "after the years add up." (7) Mr. Wilson referred to a Miller officer approximately Carlson's age as a "senile old man." (8) He also told Ms. Carlson that "old people serve no useful purpose." (9) When Ms. Carlson was ill and required hospitalization soon after her arrival in Albany Mr. Wilson told her that he did not think she would be physically fit to return to work at her age.

Attempting to discount the employer's stated reason for her dismissal, Carlson alleges that her supervisor gave differing accounts of the precise reason for her dismissal. She presented testimony from various Miller employees to support her claim that the supervisor's criticisms of her were not factually supported. Regarding the "taping incident," she explained her reason for her statement that she had taped the interview. Carlson claims there is no evidence that she was warned, suspended, reprimanded, or relieved of any duties during the seven weeks following the incident because of damage to her credibility or that of the department.

Through this evidence, Carlson has presented a question of fact as to whether the stated reason for her dismissal from Miller Brewing Company was a pretext for discrimination. The Supreme Court has stated that intent is the ultimate issue of fact to be determined in an employment discrimination suit. Pullman-Standard v. Swint, 456 U.S. 273, 288-89, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66 (1982). The employer's intent is clearly disputed in this case, and summary judgment was therefore inappropriate....

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